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Decision No. 13,931

Application of JAYNE BUSHMAN, ROBERT FEENEY, HEIDI BEATTIE and DENISE HAGGERTY for the removal from office of Louis Gunderson as a member of the Board of Education of the Middle Country Central School District.

Decision No. 13,931

(May 4, 1998)

Rains & Pogrebin, P.C., attorneys for respondent

MILLS, Commissioner.--Petitioners, who are each parents, taxpayers and residents in the Middle Country Central School District, seek the removal of respondent Louis Gunderson as a member of the board of education. The application must be denied.

Petitioners allege that respondent has acted in willful disregard of my decision in Appeal of Craft and Dworkin, 36 Ed Dept Rep 314, by abstaining on votes to grant tenure on the basis of his personal opinion of the tenure system rather than upon his assessment of the merits of the particular individuals recommended for tenure. Petitioners request that I find respondent to be in neglect of his duty as a member of the board of education and that I remove him from his position as a board member, pursuant to Education Law "306. Petitioners also allege that respondent is not entitled to a certificate of good faith pursuant to Education Law "306 and request that I issue a stay order to prevent expenditure of district funds on behalf of respondent's defense in this appeal. By letter dated August 14, 1997, my Office of Counsel advised petitioners that no stay order would be issued.

Respondent denies petitioners' allegations and contends that petitioners lack standing to bring this appeal, citing my decision in Craft and Dworkin, supra, in which I found that the petitioners in that appeal lacked standing as parents, taxpayers and residents to maintain an appeal pursuant to Education Law "310.

With respect to standing, petitioners have brought this appeal pursuant to Education Law "306, rather than Education Law "310, and therefore have standing to bring this appeal as residents and taxpayers of the district (Appeal of DiStefano, 36 Ed Dept Rep 217; Appeal of Viviano and Karamessinis, 18 Ed Dept Rep 263).

Nevertheless, the appeal must be dismissed on the merits. Petitioners have failed to establish facts sufficient to warrant removal of respondent pursuant to Education Law "306. In an appeal to the Commissioner of Education, the petitioners have the burden of demonstrating a clear, legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which they seek relief (Appeal of Caldwell, et al., 36 Ed Dept Rep 296; Appeal of Marek, 35 Ed Dept Rep 314). A member of the board of education may be removed from office pursuant to Education Law "306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Cleveland and Bedell, 36 Ed Dept Rep 482; Application of Northup, 25 Ed Dept Rep 161). To be considered willful, respondent's actions must have been intentional and with a wrongful purpose (Application of Cobler, 35 Ed Dept Rep 176; Application of Sabuda, 31 id. 461).

Petitioners have failed to establish that respondent's actions in abstaining were motivated by a wrongful purpose. Respondent has submitted an affidavit in which he states that he abstained on the tenure votes because he felt he needed to review additional information and documentation, that he had requested the superintendent to supply such information and documentation in advance of the board meeting and had not received such materials, and that he had insufficient time to gather the information because of extenuating personal obligations and circumstances. Upon the record before me, I do not find that respondent acted in willful disregard of my decision in Craft, supra, so as to require his removal. Furthermore, in view of the extenuating personal matters alleged by respondent, I do not find respondent's failure to adequately prepare in order to assess the qualifications of the individuals recommended for tenure to constitute neglect of duty sufficient to warrant his removal. However, I remind respondent of his duty as a board member to determine whether the individuals recommended for tenure possess the necessary qualifications (Education Law "3012(2); Appeal of Craft and Dworkin, id. 317) and his responsibility to timely obtain the necessary information to make such determination.

With respect to respondent's request for a certificate of good faith pursuant to Education Law "3811(1), in view of the fact that petitioners' application for removal of respondent must be denied for the reasons set forth above, I certify that respondent appears to have acted in good faith.